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Ethel Carlson and Rex Carlson v. Illinois Power Co

March 2, 2011

ETHEL CARLSON AND REX CARLSON, PLAINTIFFS
v.
ILLINOIS POWER CO., DEFENDANT



The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge

E-FILED

Wednesday, 02 March, 2011 11:12:11 AM

Clerk, U.S. District Court, ILCD

ORDER

Now before the Court is the motion to compel (#23) filed by Defendant. The motion is fully briefed and I have carefully considered the arguments of the parties.

The single document in question is a document as to which the Plaintiffs claim attorney client and/or work product privilege. They further assert that the document is irrelevant to this litigation. At the Court's order, the document has been filed under seal, and the Court has also considered that document in the context of the arguments made by the parties. As explained herein, the motion to compel [#23] is GRANTED.

BACKGROUND

This case involves purportedly polluted land, presently owned by Ethel Carlson and formerly owned by Ameren. The suit is brought under the Resource Conservation and Restoration Act ("RCRA"), which allows for suit by property owners who act as attorneys-general on behalf of the environment.

In this Order, the single document at issue is referred to as the "Agreement." Plaintiffs, in their response to the pending motion, describe the Agreement as: an agreement ... authored by undersigned counsel jointly representing*fn1 Thomas Snitzer and the Carlsons. The Agreement relates to negotiating and potentially filing suit against Ameren relating to the former Galesburg Manufactured Gas site which is the subject of this action. ... [I]n the Agreement Snitzer agreed to provide support to the Carlsons in connection with their negotiations with, and potential filing suit against, Ameren relating to the MGP site that is the subject of this action. The Agreement outlines Rex Carlson's communications to his attorney (the undersigned) relating to the position that the Carlsons planned to take in negotiations with and potential litigation against Ameren relating to the MBP site, [sic] It also outlines potential settlement scenarios relating to mr. Carlson's communications, as explained by his attorney. The Agreement provided that Snitzer's support would include, but not be limited to, acting as representative for the Carlsons under certain scenarios in anticipated settlement discussions with Ameren, and provided for Snitzer's compensation for his support to the Carlson.

Response (Doc. #25) p.2-3.

The Agreement was signed and dated on April 11, 2010, about 3 months before this lawsuit was filed. The Agreement is referenced in a Memorandum of Agreement that was filed with the Knox County Clerk. The Memorandum of Agreement reads in its entirety:

This memorandum agreement is executed between Ethel Carlson ("Carlson"), as owner of the property at Ferris and Cedar Streets in Galesburg, Illinois with the address of 151 West Ferris, Galesburg, Illinois 61401 (PIN No. 99-100453-002)("The Property") and Thomas Snitzer. Carlson and Snitzer have entered into an Agreement providing for payments to be made to Snitzer upon the sale of the Property or certain other events. The Agreement is binding upon future owners of the property. Upon the termination date of the Agreement or receipt of the payment under the Agreement, this Memorandum of Agreement is automatically released.

RELEVANCE

Ameren asserts that the Agreement is relevant to its theory that the Carlsons filed this suit based not on any concerns for the environment but rather on the statutorily- impermissible motive of personal pecuniary gain. The Carlsons assert that the document in question is irrelevant to this litigation ...


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